January and February 2017 Key NLRB Decisions; Christine K. D. Belcaid

January 3, 2018March 13, 2017

Change on the Horizon: On January 26, 2017, President Trump named Board member Philip A. Miscimarra Acting Chairman of the NLRB. Miscimarra, who is the sole Republican member of the Board, was known for his colorful dissenting opinions often in favor of employers. Trump will likely nominate Republicans to fill the two current vacancies on the five-member Board, creating a 3-2 Republican majority. Major changes to Board law and policy created over the last eight years during President Obama's administration are expected. However, the Board must wait for "live" cases to reconsider the prior Board's decisions.

Some of the most drastic and one-sided policy changes and decisions by the Obama Board, which the new, Republican-dominated Board will be eager to reconsider, include: (1) the ambush election rule, which created a shorter election window (from 38 days to 23 days from the filing of the petition) and which makes it more difficult for employers to communicate to employees about relevant issues prior to the election; (2) the new micro-unit test, which makes it nearly impossible for an employer to change the composition of a potential bargaining unit; (3) a new standard for determining joint employer status where that status now exists if the employer simply retains the authority to control employment terms or does so indirectly instead of actually exercising direct and immediate control, as required under the old standard (this issue is currently before the federal courts); and (4) an attack on an employer's right to lawfully maintain various handbook rules, including confidentiality, arbitration, conflict of interest, and conduct rules.

The employer violated Section 8(a)(5) and (1) by unilaterally changing the terms and conditions of employment when it failed to pay employees a $600 Christmas bonus required by Puerto Rico law without first providing the Union an adequate opportunity to bargain. The employer argued that it was not required to pay the bonus under an exemption to the Puerto Rico law due to financial losses it suffered that year. The Board found that even if the government had granted the exemption by the date the bonus payments were due, the employer still had an obligation to bargain under the Act because the exemption did not prevent the employer from paying the bonus.

With Member Miscimarra now Acting Chairman, the Board found the employer did not violate Section 8(a)(3) and (1) by rearranging employee seating assignments or by discharging one employee because the employer met its Wright Line burden that it would have taken the same actions even absent the employees' union activity. However, the Board (with Acting Chairman Miscimarra dissenting) ordered the employer to rescind an unlawful rule prohibiting an employee from talking to other employees about the Union while working but not prohibiting them from talking about other non-work related topics. Much to Miscimarra's chagrin, the ALJ's characterization of the prohibition - which was made in the form of a statement to a single employee - as a rule was not properly before the Board because the employer did not except to that finding.

The employer violated Section 8(a)(1) by disciplining six employees for participating in a one-day strike affiliated with the "Fight for $15" fast food workers' campaign. The strike did not constitute intermittent strike activity (defined as "a plan to strike, return to work, and strike again") because the employees engaged in only one strike at the time the employer issued the discipline, and they clearly stated in writing that they would return to work the following day.

The union violated the Act in its effort to force employers operating under the Ohio-based Construction Employer's Association building agreement to use its represented operators to perform forklift and skid steer work. In particular, the union violated Section 8(b)(4)(ii)(D) by continuing to pursue contract grievances seeking payment for the employer's assignment of work to another union and by filing new grievances seeking assignment of forklift and skid steer work previously awarded by the Board in 10(k) proceedings.

The employer did not violate either Sections 8(a)(5) or (1) (independently) by issuing and maintaining its employee handbook, which included at-will and attendance policies that were allegedly inconsistent with the parties' collective bargaining agreement. However, the Board found that the employer violated the Act by refusing to bargain with the union over a successor collective-bargaining agreement. The Board noted that an employer with evidence that a union lost majority status must either withdraw recognition from the union completely, or if the employer chooses to file an RM petition, it remains obligated to continue bargaining while the petition is processed.

The employer violated Section 8(a)(3) and (1) by discharging an employee for engaging in protected activity. The employer was not able to rebut the General Counsel's prima facie case in part because it relied only on hearsay evidence for its legitimate reason for the discharge.

Laborers' International Union of North America, Local Union No. 91 (Council of Utility Contractors, Inc. and Various Other Employers), 365 NLRB No. 28 (February 7, 2017)

The employer violated Section 8(b)(1)(A) by removing the Charging Party from its out-of-work referral list in response to his Facebook posts criticizing the union and its business manager.

The employer did not violate Section 8(a)(1) by issuing a disciplinary warning to an employee for insubordination and discharging that same employee for acting inappropriately at a meeting (the employee yelled, crossed her arms, and refused to speak to her manager about a matter critical to her job duties). The employer showed that it would have taken those actions absent any protected activity.

The union violated Section 8(b)(1)(A) by issuing and maintaining a policy, which requires members who wish to resign from membership and dues deduction to present written resignations with photo identification at the union hall or to make "other arrangements" to verify their identities. This policy imposes a restriction on resignation and dues checkoff revocation that runs afoul of the Act because it amounts to an attempt to delay or otherwise impede a member's resignation and creates uncertainty about whether unfettered access to resignation will be granted at all if a member is unable to negotiate "other arrangements" to prove his identity. The Board emphasized that any restrictions on union resignation are unlawful, and the union had no authority to unilaterally impose any restriction on the revocation of dues checkoff since the checkoff authorization is a contract between an employee and his employer.

The employer violated Section 8(a)(5) and (1) under Taft Broadcasting Co., 163 NLRB 475 (1967) by prematurely declaring impasse and unilaterally implementing changes to employees' terms and conditions of employment. Notably, the parties had not discussed - let alone fully explored - all the bargaining issues, and the Union's course of conduct during the negotiations demonstrated its willingness to not only continue bargaining but to be flexible in its demands.

The employer violated both Sections 8(a)(1) and (3) by issuing a written warning to an employee for engaging in union discussions and violated Section 8(a)(3) by discharging the same employee for engaging in union activity. The written warning - which the employer expressly issued for engaging in union discussions - established animus, helping the General Counsel meet his Wright Line burden. The employer failed to establish that it would have discharged the employee for sleeping on the job and for having a non-work related website open during working time absent union activity: the employer knew for months that the employee had been sleeping on the job but never disciplined him for it, and the employer does not a have a rule prohibiting employees from accessing non-work related websites during working time. The employer also violated Section 8(a)(1) because it questioned the employee about protected activity in prehearing interviews without giving the Johnnie's Poultry warnings.